GRACE CIRILLI POREBSKI v. M.J. PAQUET INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4235-07T24235-07T2

GRACE CIRILLI POREBSKI, as

Administratrix of the ESTATE

OF PANTALEO CIRILLI, and as

Administratrix Ad Prosequendum

on behalf of the Heirs at Law

of PANTALEO CIRILLI, and MARIA

CIRILLI, Individually, and

EUROPA MECHANICAL CORP.,

Plaintiffs-Appellants,

v.

M.J. PAQUET INC., RICHARD C.

PINTO, THE EDART TRUCK LEASING

CORP., HERBERT D. GARRETT,

FIDELITY PAPER AND SUPPLY

CORPORATION, INC., THOMAS W.

MALONEY, KORFANT CONSTRUCTION,

ZSOLT KORFANT, ABNER BURGOS,

LINDA V. DONZELLA, PAUL J.

DONZELLA, PETER KARNAUGH,

WILLIAM ROMERO, BORYS A.

JOZA, GABRIEL A. JOZA, FELIX

D. PENA, GLADYS D. VASQUEZ,

and SANDRA CARRION,

Defendants-Respondents.

_______________________________________

WILLIAM ROMERO and MARIA QUIROZ,

his wife,

Plaintiffs,

v.

M.J. PAQUET INC., RICHARD

C. PINTO, THE EDART TRUCK

LEASING CORP., HERBERT D.

GARRETT, FIDELITY PAPER AND

SUPPLY CORPORATION, SSS

CONSTRUCTION, INC., THOMAS

W. MALONEY, KORFANT CONSTRUCTION,

ZSOLT KORFANT, ABNER BURGOS,

LINDA V. DONZELLA, PAUL J.

DONZELLA, PETER KARNAUGH,

WILLIAM ROMERO, BORYS A. JOZA,

GABRIEL A. JOZA, FELIX D. PENA,

GLADYS D. VASQUEZ and SANDRA

CARRION,

Defendants.

_______________________________________

FELIX PENA,

Plaintiff,

v.

M.J. PAQUET INC., RICHARD C.

PINTO, THE EDART TRUCK LEASING

CORP., HERBERT D. GARRETT,

FIDELITY PAPER AND SUPPLY

CORPORATION, SSS CONSTRUCTION,

INC., THOMAS W. MALONEY, KORFANT

CONSTRUCTION, ZSOLT KORFANT,

ABNER BURGOS, LINDA V. DONZELLA,

PAUL J. DONZELLA, PETER KARNAUGH,

WILLIAM ROMERO, BORYS A. JOZA,

GABRIEL A. JOZA, FELIX D. PENA,

GLADYS D. VASQUEZ and SANDRA

CARRION,

Defendants.

_______________________________________

SANDRA CARRION,

Plaintiff,

v.

M.J. PAQUET INC., RICHARD C.

PINTO, THE EDART TRUCK LEASING

CORP., HERBERT D. GARRETT,

FIDELITY PAPER AND SUPPLY

CORPORATION, SSS CONSTRUCTION,

INC., THOMAS W. MALONEY, KORFANT

CONSTRUCTION, ZSOLT KORFANT,

ABNER BURGOS, LINDA V. DONZELLA,

PAUL J. DONZELLA, PETER KARNAUGH,

WILLIAM ROMERO, BORYS A. JOZA,

GABRIEL A. JOZA, FELIX D. PENA,

GLADYS D. VASQUEZ and SANDRA

CARRION,

Defendants.

_______________________________________

JULIO MARTINEZ,

Plaintiff,

v.

M.J. PAQUET INC., RICHARD C.

PINTO, THE EDART TRUCK LEASING

CORP., HERBERT D. GARRETT,

FIDELITY PAPER AND SUPPLY

CORPORATION, SSS CONSTRUCTION,

INC., THOMAS W. MALONEY, KORFANT

CONSTRUCTION, ZSOLT KORFANT,

ABNER BURGOS, LINDA V. DONZELLA,

PAUL J. DONZELLA, PETER KARNAUGH,

WILLIAM ROMERO, BORYS A. JOZA,

GABRIEL A. JOZA, FELIX D. PENA,

GLADYS D. VASQUEZ and SANDRA

CARRION,

Defendants.

_______________________________________

CLARENDON NATIONAL INSURANCE CO.,

Plaintiff,

v.

M.J. PAQUET INC., RICHARD C.

PINTO, THE EDART TRUCK LEASING

CORP., HERBERT D. GARRETT,

FIDELITY PAPER AND SUPPLY

CORPORATION, SSS CONSTRUCTION,

INC., THOMAS W. MALONEY, KORFANT

CONSTRUCTION, ZSOLT KORFANT,

ABNER BURGOS, LINDA V. DONZELLA,

PAUL J. DONZELLA, PETER KARNAUGH,

WILLIAM ROMERO, BORYS A. JOZA,

GABRIEL A. JOZA, FELIX D. PENA,

GLADYS D. VASQUEZ and SANDRA

CARRION,

Defendants.

_______________________________________

LIBERTY MUTUAL INSURANCE GROUP

a/s/o GLADYS D. VASQUEZ & FELIX

PENA,

Plaintiffs,

v.

M.J. PAQUET INC., RICHARD C. PINTO,

THE EDART TRUCK LEASING CORP.,

HERBERT D. GARRETT, FIDELITY PAPER

AND SUPPLY CORPORATION, SSS

CONSTRUCTION, INC., THOMAS W. MALONEY,

KORFANT CONSTRUCTION, ZSOLT KORFANT,

ABNER BURGOS, LINDA V. DONZELLA,

PAUL J. DONZELLA, PETER KARNAUGH,

WILLIAM ROMERO, BORYS A. JOZA,

GABRIEL A. JOZA, FELIX D. PENA,

GLADYS D. VASQUEZ and SANDRA CARRION,

Defendants.

_______________________________________

SELECTIVE INSURANCE a/s/o EUROPA

MECHANICAL,

Plaintiff,

v.

M.J. PAQUET INC., RICHARD C. PINTO,

THE EDART TRUCK LEASING CORP.,

HERBERT D. GARRETT, FIDELITY PAPER

AND SUPPLY CORPORATION, SSS

CONSTRUCTION, INC., THOMAS W. MALONEY,

KORFANT CONSTRUCTION, ZSOLT KORFANT,

ABNER BURGOS, LINDA V. DONZELLA,

PAUL J. DONZELLA, PETER KARNAUGH,

WILLIAM ROMERO, BORYS A. JOZA,

GABRIEL A. JOZA, FELIX D. PENA,

GLADYS D. VASQUEZ and SANDRA CARRION,

Defendants.

_______________________________________

GRACE CIRILLI POREBSKI as Administratrix

of the ESTATE OF PANTALEO CIRILLI, and

as Administratrix Ad Prosequendum on

behalf of the Heirs at Law of PANTALEO

CIRILLI, and MARIA CIRILLI, Individually

and EUROPA MECHANICAL CORP.,

Plaintiffs,

v.

M.J. PAQUET INC., RICHARD C. PINTO,

THE EDART TRUCK LEASING CORP.,

HERBERT D. GARRETT, FIDELITY PAPER

AND SUPPLY CORPORATION, SSS CONSTRUCTION,

INC., THOMAS W. MALONEY, KORFANT

CONSTRUCTION, ZSOLT KORFANT, ABNER

BURGOS, LINDA V. DONZELLA, PAUL J.

DONZELLA, PETER KARNAUGH, WILLIAM

ROMERO, BORYS A. JOZA, GABRIEL A.

JOZA, FELIX D. PENA, GLADYS D.

VASQUEZ and SANDRA CARRION,

Defendants.

_________________________________________________________

 

Argued February 11, 2009 - Decided

Before Judges Stern, Rodr guez and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0222-04, L-2078-04, L-5282-04, L-3949-04, L-1542-05, L-3239-05, L-2596-05, L-3910-05, and L-9184-05.

William H. Mergner, Jr. argued the cause for appellants Europa Mechanical Corp. and Estate of Pantaleo Cirilli (Leary, Bride, Tinker & Moran, attorneys; John G. Tinker, Jr., and Peter M. Bouton, on the brief).

David W. Field argued the cause for respondents M.J. Paquet, Inc. and Richard C. Pinto (Lowenstein Sandler, attorneys; Mr. Field and Priya R. Masilamani, on the brief).

Michael C. Salvo argued the cause for respondent Sandra Carrion (Ahmuty, Demers & McManus, attorneys; Mr. Salvo and Danielle M. Blanco, on the brief).

PER CURIAM

This case arises out of a fatal, twelve-vehicle accident that took place on November 24, 2003, near the intersection of Route 3 West and the Garden State Parkway in Clifton. Pantaleo Cirilli, driving a white van for Europa Mechanical Corporation, was killed in the collision. The matter began as nine separate lawsuits against the various defendants in this matter, including defendants-respondents M.J. Paquet Inc. and Richard C. Pinto (collectively "Pinto"), plaintiffs-appellants Estate of Pantaleo Cirilli and Europa Mechanical Corp. (collectively, "Cirilli"), and defendant-respondent Sandra Carrion ("Carrion"). These nine suits were consolidated into a single case.

Pinto, Cirilli and Carrion each moved for summary judgment, seeking dismissal of the claims against them. The motion judge granted summary judgment to Carrion and denied Pinto's and Cirilli's motions for summary judgment. While the summary judgment motions were pending, the various plaintiffs and the remaining defendants entered into a settlement agreement, under which all of the plaintiffs' claims were resolved. A jury trial was held, resulting in a verdict finding Pinto sixty-five percent at fault and Cirilli thirty-five percent at fault.

Cirilli appeals, arguing the motion judge improperly granted summary judgment to Carrion, the trial judge improperly excluded the testimony of a witness, Lilly Abellana (Abellana), the trial judge made several errors in the jury charge, and the trial judge erred in denying Cirilli's motions for judgment notwithstanding the verdict (JNOV) and a new trial.

We reverse and remand for a new trial.

These are the salient facts.

An automobile accident took place on November 24, 2003, on westbound Route 3 in Clifton, New Jersey. Pinto was driving a red tractor trailer approximately forty-five to fifty miles per hour at the time of the accident. He did not recall seeing any brake lights, stopped traffic, or other signs of brakes being applied, and did not hear any car or truck horns. Traffic was heavy for the quarter-mile before the scene of the accident. A car Pinto could not identify, but which he thought was "dark in color," struck him on his left. He then noticed Cirilli coming up along his left side:

[Cirilli] came over in the middle lane, had his blinker on but came over. . . He came in too close, and he had nowhere to pull away to keep going.

. . .

He didn't cut me off, I don't think he was driving carelessly, he didn't cut me of [sic]. I think everything stopped in front of him, and he had nowhere to go, and I swerved to miss him. I don't believe he did it.

Pinto estimated Cirilli changed lanes at least "a half mile" from the scene of the accident and about three seconds elapsed between the lane change and the collision. When Cirilli changed lanes and pulled in front of Pinto, Pinto swerved to the right. He was unable to avoid a collision and struck the Cirilli van, sending it into a counterclockwise spin.

A tractor-trailer driver, Herbert Garrett, saw the Pinto/Cirilli collision in his side mirror. He saw Pinto strike the Cirilli van, which then struck his tractor-trailer and was subsequently struck by other vehicles. Cirilli was killed.

When asked why he did not attempt to use his brakes, Pinto stated that it is better in such situations to "look for a hole" because "you just slide, you hydroplane, melted rubber makes you slide. The best thing is to try to get away . . . ."

Before colliding with Cirilli, Pinto was involved in two minor collisions with Carrion and another vehicle. Pinto did not seek contribution for that portion of the settlement which was allocated to the damages from these two accidents.

Pinto consumed methadone and one of his wife's Xanax pills the morning of the accident. He felt "very weak, and a little lightheaded" before leaving the house "but it went away . . . ." Pinto later passed out in the County Jail.

Pinto plead guilty to three counts of assault by auto.

Before trial began, the parties entered into mediation and agreed to settle the case for $4,871,500. Around the same time, Carrion, Pinto and Cirilli each filed motions for summary judgment dismissing the claims against them. Pinto opposed both motions, but Cirilli did not oppose Carrion's motion. Cirilli and Carrion refrained from participating in the mediation while they awaited the outcome of their respective motions for summary judgment.

The motion judge denied Cirilli and Pinto's motions for summary judgment, finding there was a factual dispute as to whether Cirilli cut off Pinto or safely changed lanes prior to the accident, and granted summary judgment to Carrion.

Trial was held to apportion the respective contributions of Cirilli and Pinto to the $4,871,500 settlement amount. The core factual dispute was whether Cirilli cut Pinto off, precipitating the accident, or if Pinto hit the Cirilli van from behind after Cirilli completed a safe and legitimate lane change.

Pinto filed an in limine motion to exclude the testimony of several witnesses to the accident, including Abellana and Carrion, on the grounds that they had not witnessed the Pinto/Cirilli collision and that the testimony was only relevant to the now-dismissed claim against Carrion. The witnesses named in the motion all saw earlier, smaller accidents. The trial judge agreed to limit Abellana's testimony to the extent that she could not testify as to any earlier accident between Carrion and Pinto, based on the "law of the case."

Dr. Richard Saferstein, Ph.D., an expert in forensic toxicology, testified that the concentrations of Xanax and methadone found in Pinto's blood and urine were "significantly high" and would cause "a significant impairment" to Pinto's ability to drive. Specifically, the drugs would reduce Pinto's muscular coordination, reaction time, ability to respond, judgment and peripheral vision. The combination of the drugs would enhance the potency of their effect.

Cirilli requested jury charges of following another vehicle too closely, driving while intoxicated (DWI), careless driving and speeding. The trial judge charged the jury with the laws of following too closely, making safe directional changes and lane changes. He read the corresponding model civil jury charge and additionally instructed the jury that Pinto's use of methadone and Xanax was to be considered only as evidence that Pinto's ability to drive was affected, and could not be considered as evidence Pinto was a "bad person" or had otherwise violated the law. The trial judge declined to instruct the jury on DWI, speeding and careless driving on the grounds that Pinto was not charged with or convicted of violating any of the statutes.

The eight-member jury returned a unanimous verdict finding both parties negligent and assigning responsibility for the accident sixty-five percent to Pinto and thirty-five percent to Cirilli. Cirilli filed a motion for JNOV or a new trial, which the trial judge denied on the grounds that the jury verdict was not irrational or unsupported by the evidence.

On appeal, Cirilli contends:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT CIRILLI'S MOTION FOR INVOLUNTARY DISMISSAL AND DEFENDANT CIRILLI'S MOTION FOR [JNOV] AND/OR A NEW TRIAL.

DEFENDANT CARRION SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT BECAUSE MATERIAL ISSUES OF FACT WERE PRESENTED DEMONSTRATING HER NEGLIGENCE IN CAUSING THE ACCIDENT.

Initially, we reject Pinto's argument that Cirilli lacks standing to challenge the grant of summary judgment to Carrion because Cirilli did not initially oppose the motion.

To preserve an issue for appeal, Rule 1:7-2 requires that, "a party, at the time the ruling or order is made or sought, shall make known to the court specifically the action which the party desires the court to take or the party's objection to the action taken and the grounds therefore."

A timely objection puts the judge on notice of potential error and provides the opportunity to take corrective action; moreover, the absence of a timely objection "suggests that trial counsel perceived no error or prejudice . . . ." Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996).

Here, we find no such considerations apply. Although Cirilli did not contest Carrion's motion, Pinto did, and the motion was fully briefed and argued. The motion judge had a full opportunity to consider and rule on the issue. Moreover, once Cirilli's own motion for summary judgment was denied, he was free to take a new position with regard to Carrion. We find no basis to preclude Cirilli's challenge on the grounds of standing.

A motion for summary judgment is properly granted where, in viewing all relevant evidence in the light most favorable to the non-moving party: (1) there are no material issues of fact in dispute; and (2) the moving party is entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).

Here, the only evidence submitted in opposition to Carrion's summary judgment motion was Abellana's statement to the police: "I was looking in rearview mirror in middle lane. Red tractor trlr and black Saturn were merging to the middle lane. I saw impact and black car flew to left lane [and] tractor trlr lost control [and] then hit white van crushing it against guardrail on right side of highway." The "red tractor trlr" refers to Pinto and the "black Saturn" refers to Carrion. Although the identity of the "white van" is unclear, it appears to refer to a white minivan driven by William Romero, not the white van driven by Cirilli.

Abellana signed her police statement but was not deposed before the parties submitted their cross-motions for summary judgment.

The motion judge found both that Abellana's statement was hearsay and that it did not raise an issue of material fact regarding Carrion's alleged negligence. He granted Carrion's motion for summary judgment.

In so holding, the motion judge relied on our decision Fagan v. Newark, 78 N.J. Super. 294 (App. Div. 1963), where we addressed the admissibility of a business record at trial, holding: "Where . . . the informant to the entrant of the record is under no duty to anyone to make a truthful account of the facts thus recorded, the record will not be admissible as proof of such facts." Id. at 319.

Because different evidentiary considerations apply in a motion for summary judgment than at trial, we find the motion judge's reliance on Fagan was misplaced. We have previously reversed grants of summary judgment where statements generally inadmissible as trial evidence created a sufficient question of material fact to submit the case to a jury. See, e.g., Hager v. Gonsalves, 398 N.J. Super. 529 (App. Div.), certif. denied sub nom. High Point Ins. Co. v. Rutgers Cas. Ins. Co., 195 N.J. 522 (2008); Celino v. Gen. Accident Ins., 211 N.J. Super. 538 (App. Div. 1986).

Although Abellana's statement does not take the form of an affidavit or a certification, the statement was signed, and there are no indicia that it is unreliable. The statement raised a question as to whether the Carrion/Pinto collision caused Pinto to lose control of his vehicle, precipitating the Cirilli/Pinto collision. Had the negligence claim against Carrion been presented to the jury, it may have altered the allocation of fault between Pinto and Cirilli. These are factual issues that should have been presented to the jury for resolution. Accordingly, the motion judge erred in granting summary judgment to Carrion.

The erroneous grant of summary judgment, predicated on an improper reading of the law, merits reversal for a new trial. Although we need not reach Cirilli's other arguments on appeal, we briefly address them to inform any evidentiary questions on remand.

THE TRIAL COURT IMPROPERLY EXCLUDED THE TESTIMONY OF AN EYEWITNESS TO THE ACCIDENT.

The trial judge, granting Pinto's motion in limine, ruled to limit Abellana's testimony to events she witnessed after the initial Carrion/Pinto collision. The trial judge based this decision on the ground that, because Carrion had been granted summary judgment, Abellana's testimony, which primarily related to the issue of Carrion's negligence, was excluded under the "law of the case" doctrine.

In general, evidence that is relevant under N.J.R.E. 401 is admissible under N.J.R.E. 402. "Unless the opponent of the proffered evidence can point to a specific rule of exclusion, or the judge exercises discretion to exclude the evidence based on countervailing concerns pursuant to N.J.R.E. 403, relevant evidence is admissible." Reinhart v. E.I. Dupont de Nemours, 147 N.J. 156, 164 (1996) (citation omitted).

Here, Abellana's testimony was relevant because it could inform the jury's determination as to the credibility of Pinto's account of the accident, particularly with regard to prior impacts and whether Pinto was in control of his vehicle when he struck Cirilli. No specific exclusionary rule applied and the trial judge did not rule to exclude the testimony under N.J.R.E. 403. Moreover, any risk of prejudice or confusion could be cured with a limiting instruction.

THE TRIAL COURT FAILED TO CHARGE THE JURY THE STANDARD OF CARE SET FORTH IN THE TRAFFIC ACT FOR (1) SPEEDING, (2) DRIVING UNDER THE INFLUENCE AND (3) CARELESS DRIVING.

THE TRIAL COURT'S DOLSON CHARGE IMPROPERLY ADVISED THE JURY THAT FOLLOWING ANOTHER VEHICLE TOO CLOSELY IS MERELY "EVIDENCE" OF NEGLIGENCE, RATHER THAN NEGLIGENCE ITSELF.

Cirilli asserts the jury should have been charged with negligence per se on the grounds that Pinto violated the Traffic Act by speeding, N.J.S.A. 39:4-98; driving while intoxicated (DWI), N.J.S.A. 39:4-50; and careless driving, N.J.S.A. 39:4-97. We agree.

We held in Ewing v. Burke:

The motor vehicle statutes establish standards of conduct for motorists on our highways and, under usual circumstances, the violation of motor vehicle statutes is evidence of negligence. Paiva v. Pfeiffer, 229 N.J. Super. 276, 280 (App. Div. 1988). Ordinarily, therefore, if there is evidence tending to establish that a vehicle was operated in violation of a motor vehicle statute, the statutory duty should be charged to the jury in order to assist the jury in arriving at the appropriate result.

[Ewing v. Burke, 316 N.J. Super. 287, 293-94 (App. Div. 1998).]

There is no requirement that a party be charged with or convicted of an offense before instructing the jury on the applicable statute. The trial judge erred in finding such a requirement.

We briefly note that there was sufficient evidence Pinto violated the statutes in the requested charges to give the requested instruction. Although it has not been suggested Pinto exceeded the posted speed limit, there was some suggestion he was traveling at a speed unsafe for the prevailing road conditions. This supports both the careless driving and speeding charges.

Further, Pinto's admission that he used Xanax and methadone prior to the accident, coupled with Doctor Saferstein's testimony as to the concentration of the drugs in Pinto's body and the potential for the drugs to affect his ability to drive, warranted an instruction on the DWI statute.

Similarly, we find the trial judge erred in failing to instruct the jury that following another vehicle too closely, N.J.S.A. 39:4-89, is negligence per se and not merely "evidence" of negligence. Dolson v. Anastasia, 55 N.J. 2, 10 (1969). The jury instruction should reflect this.

We only add that a finding of negligence per se does not preclude a finding of comparative negligence by another tortfeasor.

 
Reverse and remand for a new trial.

N.J.S.A. 2C:12-1c(2).

N.J.S.A. 39:4-89.

N.J.S.A. 39:4-50.

N.J.S.A. 39:4-97.

N.J.S.A. 39:4-98.

N.J.S.A. 39:4-123.

N.J.S.A. 39:4-88.

(continued)

(continued)

18

A-4235-07T2

September 8, 2009